Cities say Trump’s sanctuary policy is unconstitutional

(Reuters) - On Wednesday, Seattle became the latest city to sue the Trump administration over the Jan. 25 executive order vowing to strip federal funding from “sanctuary jurisdictions” – cities, counties and towns that the administration deems to be insufficiently cooperative with its immigration enforcement policies.

Seattle joins the Massachusetts cities of Chelsea and Lawrence and the California cities of San Francisco and Santa Clara, which have also gone to court to challenge the constitutionality of the executive order and the Trump administration’s interpretation of the underlying immigration statute.

Dozens of other cities and counties, as well as the state of California, have filed friend-of-the-court briefs in the California cases, which are headed for a major hearing on April 14. San Francisco and Santa Clara have both moved for preliminary injunctions to block the government from cutting off their federal funding.

U.S. District Judge William Orrick of San Francisco will oversee a joint hearing on both injunction motions next month. That will be an important test of the cities’ legal theories because San Francisco and Santa Clara must show they are likely to win on the merits in order to block the executive order.

Seattle and the Massachusetts cities are pursuing a slightly different legal strategy. They have not asked for a preliminary injunction but want declaratory judgments that their policies comply with federal law and that the executive order is unconstitutional.

In combination, the four lawsuits challenging the Trump executive order on sanctuary cities raise myriad constitutional concerns. Between them, the cities argue the Trump policy violates the Fifth and Tenth Amendments, the Spending Clause and the fundamental constitutional principle of separation of powers.

The Trump executive order, titled “Enhancing Public Safety in the Interior of the United States,” included a provision stating that sanctuary jurisdictions “willfully refuse to comply” with federal immigration laws. Those laws, the executive order said, allow cooperation between local law enforcement agencies and federal immigration officials. According to the order, denying federal funds to designated sanctuary jurisdictions is a means of assuring compliance with the law.

The Justice Department has not yet directly addressed the cities’ constitutional arguments against the Trump sanctuary policy. In a response to San Francisco’s bid for a preliminary injunction, DOJ said “aliens who enter the United States illegally” pose a threat to national security that is “heightened when jurisdictions choose to violate federal immigration law to shield illegal aliens - many of whom have been incarcerated by federal, state or local authorities - from federal immigration authorities.”

DOJ also said that the executive order has not changed the obligations of state and local authorities nor attempted to expand the authority of the federal government. “The executive order does nothing more than direct enforcement of preexisting duties under federal law,” the DOJ brief said. (The Justice Department also argued that the California cities are not entitled to a preliminary injunction because they have not yet been denied federal funds.)

As the cities’ complaints point out, the Trump executive order on sanctuary jurisdictions implicates billions of dollars in federal funds to these cities, counties and towns. Given the consequences, it’s worth taking a close look at why the cities believe the administration is violating the Constitution.

All of the complaints claim breaches of the Tenth Amendment, which says that states have all of the powers the Constitution has not delegated to the federal government. Broadly speaking, there are two theories of why the Trump sanctuary city policy violates the Tenth Amendment: It allegedly interferes with state and local rights to set their own law enforcement policies and it unconstitutionally commandeers state officials to enforce federal policies.

There’s plenty of precedent underlying the cities’ arguments that the federal government cannot force states to bow to federal authority on matters of state law. In 1997’s Printz v. U.S., for instance, the Supreme Court found a breach of the Tenth Amendment in a federal gun control provision requiring local law enforcement officials to conduct background checks on prospective handgun buyers. In 1992’s New York v. U.S., the justices said the Tenth Amendment bars the federal government from requiring states to abide by its regulations for disposing of nuclear waste.

The cities challenging the Trump sanctuary policy argue that it’s an especially offensive usurpation of state and local authority because the administration’s insistence on detaining immigrants at the direction of the Department of Homeland Security could expose local law enforcement agencies to civil rights claims. As the state complaints note, at least two federal circuits have allowed claims against law enforcement agencies by detainees held on warrants from Immigration Control and Enforcement.

The cities contend the federal government runs afoul of the constitution’s Spending Clause when it attempts to use its funding power to force states to adopt its policies, as the Supreme Court held in its first Obamacare decision, 2012’s National Federation of Independent Businesses v. Sebelius. Though that decision upheld much of the Affordable Care Act, the justices struck down the law’s penalty on states that chose not to expand Medicaid because it deemed the penalty to be coercive. The cities challenging the sanctuary policy claim the administration’s threat to cut off federal funds is also unconstitutionally coercive.

Santa Clara and the Massachusetts cities argue the Trump policy also violates the Fifth Amendment’s Due Process Clause. “The executive order does not provide meaningful guidance as to what municipalities must do to continue to receive funding, and it encourages arbitrary enforcement of penalties by the executive branch,” the Massachusetts suit said. Santa Clara said the order does not even include assurances that cities, counties and towns will be notified if they have been deemed sanctuary jurisdictions and face the loss of federal funds.

Most fundamentally, the cities’ complaints assert that by threatening to deprive sanctuary jurisdictions of federal funds, the Trump administration is violating separation-of-powers principles by interfering with congressional hegemony over federal spending.

The essence of the argument, as San Francisco’s suit states it: “The executive order effectively legislates a sanction … by using the (federal immigration) statute as a basis to broadly deny federal grants to municipalities that have made a policy decision to focus law enforcement resources on local problems and limit their entanglement with federal immigration enforcement,” the complaint said. “The president’s unilateral imposition of this new sanction and condition on spending is not supported by any act of Congress.”

In fact, the California cities argued, Congress considered but did not enact a 2015 bill that would have conditioned federal funding on compliance with federal immigration enforcement directives. The sponsor of the Senate version of the bill, which died in committee, was Jeff Sessions, then a Republican senator and now, of course, the U.S. Attorney General.

The cities have some high-powered legal help on their sanctuary policy challenges. Santa Clara is working with Keker & Van Nest, the Massachusetts cities with Goodwin Procter and Seattle with Mayer Brown. (San Francisco city attorneys don’t seem to be using outside counsel.) The lawyers have enveloped the Trump policy in a big constitutional dust cloud. Let’s see if it sticks.